Perazza (Migration)

[2021] AATA 4186

Perazza (Migration) [2021] AATA 4186 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elvira Perazza

CASE NUMBER:  1824421

HOME AFFAIRS REFERENCE(S):          CLF2017/9777

MEMBER:M. Edgoose

DATE:19 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl 838.212 of Schedule 2 to the Regulations

·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 19 August 2021 at 1:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – ‘aged dependent relative’ – granddaughter’s husband – incapable of meeting basic needs without ongoing support – financial reliance – Power of Attorney (POA) – medical letter – age pension age – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212, 838.221

CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).

2. The applicant applied for the visa on 17 January 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Giuseppi Caligiuri, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

7. In this case Mr Giuseppi Caligiuri is an Australian citizen and is the applicant’s granddaughter’s husband.

   Is the applicant an aged dependent relative of an Australian relative?

8. To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl 838.212, cl 838.221 and cl 838.111. ‘Aged dependent relative’ is defined in reg 1.03 of the Regulations.

9. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991 (Cth).

10. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.  

    Does the applicant have a spouse or de facto partner?

11. The applicant is widowed and therefore meets the definition of ‘aged dependent relative’.   For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

12. The definition of ‘dependent’ as it applies to this application is set out in reg 1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food, clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: reg 1.05A(1).

13. For the purposes of this application, reference to a ‘substantial period’ in reg 1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

14. The applicant arrived in Australia on 6 December 2016 on a Subclass TV-651 visa. This visa ceased on 6 March 2017. While onshore the applicant submitted an application for an 838 Aged Dependent Relative visa on 17 January 2017. This application was refused on 13 August 2018 and is the subject of this review.

15. The Tribunal has given substantial regard to the submission made by the sponsor dated 12 August 2021. Since arriving in Australia the applicant’s health has declined due to her aging process. The applicant has been living with her relatives Sefora and Jack Versace since arriving in Australia on 6 December 2016. The sponsor mentioned that the applicant doesn’t do any of her chores and that all meals are provided and served, the washing up is done for her, clothes are washed and dried and her bed is made for her. The sponsor stated that the applicant is incapable of living alone. For these reasons the Tribunal is satisfied the applicant is incapable of meeting her own basic needs without ongoing support.

16. The Tribunal acknowledges that the applicant receives a monthly pension from her home country of Italy to the amount of approximately 1,200 Euro. The applicant sold a property in Italy approximately two years ago and received about 40,000 Euro from the sale. The sponsor informed the Tribunal that the funds from the sale are sitting in the applicant’s Australian bank account in case this money is required. The sponsor further stated that the applicant has been financially reliant on the sponsor and other relatives during her time in Australia. The Tribunal further notes that the applicant’s granddaughter, Sefora, has Power of Attorney (POA). The Tribunal places significant weight on the letter from the sponsor.

17. The sponsor further informed the Tribunal that the applicant was placed in respite several weeks ago and that the reason the POA was suggested was for when the time comes that the applicant is not able to make decisions of her own.

18. The Tribunal has given significant regard to a medical letter dated 31 July 2020 from Dr Fady Soliman that the applicant relies heavily on her granddaughters to feed her and remind the applicant to take her medications. The letter further stated that the applicant needs help to get dressed, to shower and for all of her day to day activities. The doctor stated that the applicant is not capable of independent living. The Tribunal places significant weight on the letter from Dr Fady Soliman.

19. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant old enough to be granted an age pension?

20. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an aged pension under the Social Security Act 1991 (Cth). Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.

21. Given that the applicant will turn 95 years of age on 8 September 2021 the applicant is old enough to be granted an age pension under the Social Security Act 1991 (Cth). For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

22. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and at the time of decision for the purposes of cl 838.212 and cl 838.221.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.

    DECISION

24. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

    · cl 838.212 of Schedule 2 to the Regulations

    · cl 838.221 of Schedule 2 to the Regulations.

    M. Edgoose
    Member